Workers’ Compensation Cases in Boston Can Be Complicated by Employee Misclassification

In most jobs in the Greater Boston area, a worker is an employee of his or her company or boss and there is very little question about that classification.  This is true if you work for hourly wages at a fast food restaurant and it is also true if you are the regional manager for a large company in most cases. The point is, most workers get a paycheck every two weeks or each month and the employer must withhold taxes based upon the allowance claimed by an employee.  At the end of the year, an employee is entitled to a W-2 form declaring to the U.S. Internal Revenue Service (IRS), what he or she has made each year and how much he or she has already paid in taxes and other federal withholdings. There are however, some occupations where the lines are blurred and the worker may actually be an independent contractor.

Boston Workers' Compensation This matters in Boston workers’ compensation cases because while an employee within the meaning of the statute (Chapter 152, Section 1(1A) of the Massachusetts General Laws (M.G.L)), is entitled to workers’ compensation in the event of an on the job injury or work-related illness, independent contractors are not.  This means if an independent contractor is injured on the job or becomes sick due to a work-related illness, he or she will have to use personal health insurance and will not be compensated for any lost wages due to time missed from work unless he or she has private short or long-term disability insurance. If it is possible to afford such coverage, it is usually a good idea to get it in the even the worker in injured while on the job in Boston.

Misclassification of Employees in Boston Workers’ Compensation Cases

While there be no workers’ compensation coverage for independent contractors who are injured at work in Boston, in the vast majority of cases absent a separate contractual agreement, as our Boston workers’ compensation attorneys can explain, the real problems exists when an employer tries to treat a worker as independent contractor when he or she is actually an employee. In many cases, an employer will even go so far as to treat an employees as a statutory employee for the purposes of supervision and discipline, but as an independent contractor if an employee is hurt on the job.

There are many reasons employee misclassification occurs.  In some cases, it is truly a mistake in that an employer is not well-versed in the labor laws in Massachusetts and doesn’t know they have an employee instead of an independent contractor. This same issue can also cause problems in the event of a Boston personal injury cases where a plaintiff is trying to hold an employer liable for an employee’s tortious conduct, which resulted in injuries to plaintiff.

Fortunately for employees in a workers’ compensation case, an employer’s lack of knowledge of relevant labor law is generally never going to be a valid defense.  This is due to the old legal maxim many people have heard which states mistake of law is never a defense. While we hate to use the word never, as the law often has many exceptions, this is true in almost every civil case including workers’ compensation actions in Boston as well as even criminal cases in which a defendant claims they didn’t know what they were doing was illegal. There is possibly of a mistake of fact defense, but that is an entirely different situation.

Situations Where Employee Misclassification Tends to Occur

One of the obvious examples where we tend to see a lot of employee misclassification is on construction jobs. This is also true because construction is one of the most dangerous occupations in the Greater Boston area as well as the rest of the nation. According to National Census of Fatal Occupational Injuries, there were over 5,100 fatal work accidents in a single year, and construction jobs topped the list in these statistics. This report was compiled and prepared by the U.S. Bureau of Labor Statistics (BOL), which is a child agency of the U.S. Department of Labor (DOL).

Recent Example of Boston Construction Accident

According to a recent news article from CBS Boston WBZ, a window washer was injured when he nearly 40 feet to the ground.  He was sitting on a small platform lowered several feet from the roof of the building when he fell.  While we typically see scaffolding collapses, there was no indication the scaffolding broke in this case, but it was noted it was a particularly windy day.  He was also not wearing any type of safety harness, which could possibly have prevented such a fall from occurring.

The reason we tend to see so many worker misclassification issues in the construction industry is largely because the term contractor is thrown around a lot, and it is often done so in a legally inappropriate manner.  On any large-scale construction project, there is a likely at least one general contractor who may have had to bid on the project. When he or she submits his bid, he has to include all subcontractor estimates as well.  For example, a general contractor will likely do framing carpentry, but will need to hire plumbers, masons, electricians, and many other specialty trade contractors. While a general contractor could hire his own workers to do all of these things, he likely doesn’t have the tools, training, or experience to do so and even if he could it would not likely be cost effective.  This essentially leaves us with many laborers and skilled workers working for various general and subcontractors on one job site. What is important to understand is just because someone works for a contractor does not make them a contractor.  Most laborers are probably employees within the meaning of the M.G.L. and should be provided with workers’ compensation protections.

This matter can be further complicated, however, by the fact many workers on construction projects are required to own their own tools.  We are not talking about major heavy equipment, but things such as nail guns and hand tools. This is relevant because one test at common law of whether a person was under the authority of another dealt with whether an employer supplied tools.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at (617) 777-7777.

Additional Resources:

Window Washer Injured In Fall At Newton-Wellesley Hospital, March 17, 2018, By Jim Smith, CBS Boston WBZ

More Blog Entries:

Third-Party Liability in Massachusetts Work-Related Injuries, Deaths, March 13, 2018, Boston Workers’ Compensation Attorney Blog


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